Molia v R - [2013] NZCA 512

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/2013
[2013] NZCA 512

BETWEEN	JOSEPH MOLIA Appellant
AND	THE QUEEN Respondent

Hearing:	23 September 2013
Court:	French, Winkelmann and Panckhurst JJ
Counsel:	L J Postlewaight for Appellant N E Walker for Respondent
Judgment:	23 October 2013 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence of three years and six months’ imprisonment is quashed and a sentence of three years’ imprisonment is substituted.

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REASONS OF THE COURT

(Given by Winkelmann J)

Introduction

Mr Molia appeals a sentence of three years and six months’ imprisonment imposed following his plea of guilty to one charge of aggravated robbery.[1] He says that the sentence was manifestly excessive.

Factual background

[1]R v Molia DC Whangarei CRI-2012-088-3876, 16 May 2013.

In the early evening of 18 February 2012, Mr Molia and an associate went to a dairy in Kamo, Whangarei, armed with a slug pistol. They were wearing gloves and had their faces covered to disguise their identities. Mr Molia pointed the pistol at a member of the public outside the dairy and told him to stay where he was, which he did. Once inside the dairy, Mr Molia brandished the pistol at the dairy owner and told him to hand over the money in the cash register. The appellant and his associate then jumped the service counter, telling the owner to open the register. Another member of the public was in the dairy, and was told by Mr Molia to take what he wanted. This person declined, and then left. Mr Molia and his associate took cash and between 80 and 100 packets of cigarettes.
Mr Molia was not arrested for the offending until November 2012, after the police went looking for him at his home. Mr Molia was not there, but when he returned home and heard that the police had visited, he asked his family to take him to the police station, where he made a full confession.

Sentencing decision

Mr Molia was 18 at the time of the offending. He has no history of violent offending, but has two previous convictions for burglary and three convictions for wilful damage, all of these offences having been committed on the same day in April 2011. He has a further two convictions for wilful damage, both committed on the same day in December 2011. He has not previously received a sentence of imprisonment. He committed the aggravated robbery when he was subject to a sentence of supervision in respect of the December 2011 offending.
The pre-sentence report discloses that Mr Molia was raised by his grandparents, but maintained regular contact with his mother. However, when Mr Molia was 13, his mother was killed in a car crash along with her daughter, son and unborn child. Shortly after that Mr Molia was “kicked” out of school. He has obtained work harvesting kiwifruit and in the forestry sector. He has also been attending courses at Work and Income in the hope…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Molia v R

Details

AGLC: Molia v R [2013] NZCA 512
Case: [2013] NZCA 512
Decision Date: 23 October 2013 at 10.00 am

CaseChat Overview and Summary

Joseph Molia appeals against a sentence of three years and six months' imprisonment, imposed following his guilty plea to a charge of aggravated robbery. Molia contends that the sentence was excessive. The case was heard by the Court of Appeal of New Zealand, with French, Winkelmann, and Panckhurst JJ presiding. Counsel for Molia was L J Postlewaight, and for the Crown, N E Walker. The appeal was allowed, and the sentence was reduced to three years' imprisonment.

The legal issues before the court were whether the sentence imposed was manifestly excessive and if the sentencing Judge erred in his approach. Molia's counsel argued that the starting point of five years was too high, and the Judge failed to consider the mitigating factors adequately. The Crown contended that the Judge's approach was orthodox and appropriate.

The Court of Appeal determined that the sentencing Judge did not clearly articulate how the final sentence was reached. Therefore, the Court approached the sentencing exercise afresh. The Court found that the starting point could have been slightly lower but increased it by six months to account for the fact that the offence was committed while Molia was still subject to a sentence of supervision. The Court then applied the mitigating factors, considering Molia's youth, prospects of rehabilitation, and remorse. The Court found a discount of nine months appropriate for Molia's youth and allowed a two-month reduction for time spent on electronic monitoring bail. The Court also agreed that a 25% reduction for Molia's guilty plea was appropriate. The Court concluded that a sentence of three years' imprisonment was appropriate, reflecting both the seriousness of the offence and the interest in rehabilitating a young offender.

The Court of Appeal allowed the appeal and substituted a sentence of three years' imprisonment for the original sentence of three years and six months' imprisonment.

Orders